Wanjiku v Christ is the Answer Ministries (CITAM) & another (Civil Suit 066 of 2020) [2025] KEHC 8774 (KLR) (Commercial and Tax) (20 June 2025) (Judgment)

Key Facts

Issues

• The court determined whether the defendants infringed the plaintiff's copyright by using her lyrics and melody in their song 'Athuri Mwihithe' without authorization.
• The court assessed the validity of the defendants' defenses, including claims that the use was incidental and that the song is in the public domain as folklore.
• The court decided if the plaintiff is entitled to injunctive relief, damages, and costs following the infringement.

Holdings

• The court found that the defendants infringed the plaintiff's copyright by using the lyrics and melody of 'Rungu Rwa Ihiga' without authorization. The use was not incidental and formed a central, repeated, and substantial part of the defendants' song 'Athuri Mwihithe', which was determined to be a deliberate and unlawful appropriation of the plaintiff's protected expression.
• The plaintiff was awarded Kshs. 1,500,000 in general damages, a permanent injunction, a takedown order for infringing content, and costs. The court considered the non-commercial nature of the defendants' use and their failure to produce evidence, but emphasized the need to vindicate the plaintiff's rights and deter future violations.
• The defense of incidental inclusion under the Copyright Act was rejected, as the copied material was neither casual nor inessential but central to the defendants' composition. The claim that the song constitutes folklore was also dismissed due to lack of evidence supporting its traditional or communal origin.

Remedies

• A permanent injunction was issued restraining the defendants from making any sales, hire, distribution, performance, reproduction, or other acts that infringe the plaintiff's copyright in the song 'Rungu Rwa Ihiga'.
• The plaintiff was awarded the costs of the suit.
• The defendants were ordered to take down the infringing song from all platforms and destroy any copies, records, or performances of it within seven (7) days from the judgment date.
• The plaintiff was awarded general damages for copyright infringement in the sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/=), with interest at court rates from the date of filing suit until payment in full.

Monetary Damages

Legal Principles

• The plaintiff's registered copyright created a presumption of originality, shifting the burden to the defendants to prove independent creation or statutory exceptions.
• The court emphasized that delayed public dissemination of the plaintiff's work on YouTube did not negate her pre-existing copyright rights acquired through registration.
• The court applied a qualitative test for substantial similarity in copyright infringement, focusing on expression rather than ideas, as outlined in R.G. Anand v Deluxe Films.
• The 'incidental inclusion' exception under Kenya's Copyright Act was rejected as the copied segment was central to the defendants' song, not peripheral or inessential.

Precedent Name

• IPC Magazines Limited V MGN Limited
• Nairobi Map Services Limited V Airtel Networks Kenya Limited & 2 Others

Cited Statute

Judge Name

Passage Text

• The court awarded general damages of Kshs. 1,500,000/=, noting the non-commercial use by the defendants, their failure to disclose evidence, and the plaintiff's moral and proprietary harm. The award aims to vindicate rights, affirm copyright principles, and deter violations.
• This decision reinforces the principle that copyright does not protect ideas or themes in the abstract, but rather the expression of those ideas. In the present case, even if the defendants and the plaintiff drew inspiration from similar biblical themes, what is protected is the plaintiff's particular arrangement of lyrics, rhythm, and musical structure.
• The Court of Appeal in Nairobi Map Services upheld the High Court's finding that 'incidental inclusion' refers to material that is 'secondary or subordinate to the overall objective.' The court found the defendants' use of the plaintiff's lyrics and tune was neither casual nor inessential, spanning over three minutes and forming a central part of their song.